Vol. 25 No. 17- Medical marijuana patient can sue for value of destroyed marijuana

July 6, 2009

On July 1, 2009, the Third District Court of Appeal ruled, in the case of County of Butte v. Superior Court of Butte County (Williams), that a qualified patient or caregiver could sue to recover the value of marijuana plants he or she was ordered to destroy, on threat of arrest.  In a 2-1 decision, the court held that if a plaintiff can show “that he had a legal right to possess the marijuana in question, and that his rights were violated, he may bring his action [for money damages] based on general applicable legal principles.”

Williams, his wife, and several others were “qualified patients” under Proposition 215, the Compassionate Use Act (CUA) and, pursuant to Health and Saf. Code section 11362.77, which is part of the Medical Marijuana Program Act (MMPA), they associated “within the state in order collectively or cooperatively to cultivate marijuana for medical purposes ….”

Williams grew the marijuana for all of them at his home.  When a deputy sheriff, without a warrant, came to the Williams’ home to investigate the marijuana cultivation, Williams produced copies of medical marijuana recommendations for all of the members.  Under the MMPA, a qualified patient is entitled to possess no more than eight ounces of dried marijuana or six mature or twelve immature marijuana plants.

Despite having the recommendations, the deputy ordered Williams to destroy all but 12 of the plants (six for him and six for his wife) or be subject to arrest and prosecution.  Williams complied and then filed suit alleging a number of constitutional violations including the violation of his right to due process, unreasonable search and seizure, and conversion (unauthorized assumption and exercise of rights of ownership over personal property belonging to another) of the plants.

The county demurred to the suit arguing that (1) Williams only had a limited defense against criminal prosecution which he could raise in criminal court; (2) a qualified patient could share the marijuana he grew with other patients only if he was the primary caregiver; and (3) Williams had no right to bring a civil cause of action.  The trial court denied the county’s demurrer and the county filed a petition for a writ of mandate.

Limited Defense in Criminal Court

Based upon language in a decision by the California Supreme Court, in the case of People v. Mower, (2002) 28 Cal. 4th 457, the county argued that under the law one can still be arrested and prosecuted even if he or she claims protection under the MMPA.  The Supreme Court, in Mower, stated that the MMPA does not afford qualified medical marijuana patients a complete immunity from arrest because of their status as patients.

The Butte County court stated that the “county claims Mower stands for the proposition that qualified patients may assert a violation of constitutional rights only in the arena of a criminal prosecution.  They must refuse to obey an official action, be arrested, and then challenge the officer’s determination of probable cause in a motion to set aside the charges.  We disagree.”

The court noted that Williams wasn’t arrested and, therefore, isn’t claiming immunity from arrest.  Rather, he seeks adjudication of whether the deputy’s lack of probable cause led to a violation of his constitutional rights when he was ordered to destroy the plants.

Furthermore, the court cites to the decision in City of Garden Grove v. Superior Court (Kha), (2007) 157 Cal. App. 4th 355, where the Court of Appeal ruled that a police department had to return marijuana, which had been lawfully seized by its officer, after the case was dismissed under Prop 215.

The Garden Grove court held that “even though the state law is silent as to whether a qualified patient like Kha is entitled to the return of his marijuana once criminal charges against him have been dismissed, due process principles seem to compel that result.”  Since Williams was lawfully growing the marijuana, the Butte County court held that “we believe the same considerations of due process and fundamental fairness are operative in the present case.”

Federal vs. State Law

The dissent in the Williams case argued that since, under federal law, “marijuana is just as illegal as cocaine, and therefore is contraband per se …” it cannot be lawfully possessed.  The majority disagreed stating that the MMPA “presents an unusual circumstance of a state law that, under limited circumstances, permits the possession of a substance deemed to be contraband under federal law.”  As a result, since the deputy was “acting under color of California law, not federal law … the propriety of his conduct is measured by California law.”

The firm of Jones & Mayer, as general counsel to the California State Sheriffs’ Association (CSSA), the California Police Chiefs’ Association (CPCA), and the California Peace Officers’ Association (CPOA) submitted an amicus curiae brief, and presented oral argument to the Court of Appeal, supporting Butte County.  Our arguments on behalf of law enforcement were similar to the positions ultimately set forth in the dissenting opinion.  We argued, strenuously, that one cannot have lawful possession of something which is declared illegal under federal law and that such a ruling would create havoc in the enforcement of laws which prohibit possession of property declared to be contraband.


The majority’s ruling is that Williams has the right to sue to collect the value of the plants which he destroyed in order to avoid arrest.  It is interesting to note that the court stated, in quoting from the Garden Grove decision, that “the City no doubt has every right to retain a defendant’s marijuana if it is pursuing a marijuana-related prosecution against him, or if the defendant’s possession does not comport with the [Act].  In those situations, the law clearly contemplates the destruction of the subject marijuana ….”  The court then points out that neither of those circumstances existed in the Butte County case.

If the deputy had arrested Williams, rather than give him the option of destroying the plants the deputy thought were excessive, then Williams could have raised a Proposition 215 defense in criminal court.  However, it appears that the destruction of the plants, under those circumstances, might have been lawful.

It is difficult, based on the logic of this particular decision, to be sure of that conclusion but it certainly remains as a logical argument.  At this point in time, however, the law appears to be that law enforcement must protect dried marijuana and/or plants, which are taken as evidence, or face the potential of being sued for the value of the destroyed drug.

It is necessary to confer with your agency’s legal counsel to secure advice and guidance in the application of this decision.  As always, if you wish to discuss it in greater detail, don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.

 As always, we urge that you confer with your agency’s own attorney for legal advice and guidance.  If you wish to discuss this case in greater detail, please feel free to contact either of us at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com or prc@jones-mayer.com.